William H. Rehnquist:

Kenneth O. Eikenberry:

Mr. Chief Justice, and may it please the Court.

I'm appearing here this morning in opposition to a petition by prison inmate Mark Edwin Cook for issuance of the great writ of habeas corpus.

The question presented here, in our view, is this: does a Federal Court have subject matter jurisdiction over a habeas corpus challenge to a 1958 robbery conviction, the sentence for which had expired before the petition was filed but which may have an effect on the length of time to be served in the future on another sentence for an unrelated crime.

Now in addition to this issue, which may be viewed as somewhat technical, we think there's an additional and necessarily related question, and that is what are the standards and the scope of review to be applied in a challenge to the length of that future sentence.

Byron R. White:

I take it that... may we consider this case just as though he was actually serving a state... what if the state is the one that had him in jail, that has him in jail now?

He's now serving a federal sentence?

Kenneth O. Eikenberry:

That is correct, Your Honor.

In fact, I'd like to suggest that there four, actually four convictions here that all interplay with one another.

Byron R. White:

Yes, but suppose he was now serving the '78 sentence, state sentence?

You would still be making the same argument?

Kenneth O. Eikenberry:

Yes, Your Honor, we would.

If I may, I'll list those four convictions because they do interplay and I believe will have a bearing on how the Court looks at this case.

Byron R. White:

Well, I didn't think it would have any bearing.

I thought you said it would be the same situation if he were now serving the '78 state sentence.

Kenneth O. Eikenberry:

The thing I'd like to do, Your Honor, is posture this so that we're focusing on the distinction.

Byron R. White:

The latest state sentence is '78?

Kenneth O. Eikenberry:

Yes, Your Honor.

Byron R. White:

And that's the one that was enhanced by the '58 sentence, is that right?

Kenneth O. Eikenberry:

Well, we'd like to reserve using the word "enhancement", Your Honor, and get to that.

Byron R. White:

Okay.

Kenneth O. Eikenberry:

But the beginning point, of course, was in 1958, where Mr. Cook was convicted of three counts of robbery and sentenced to three terms of not more than 20 years.

That sentence has now expired, which we think is a critical feature of the case before the Court.

The second conviction was in 1965, when Mr. Cook was convicted of three counts of robbery and sentenced to three 50-year terms, and, incidentally, a detainer has been placed on that conviction.

The third conviction occurred in 1976 in federal court, when Mr. Cook was convicted of robbery and conspiracy with 25 and 5-year terms, and that is the case on which he is now in custody at Lompoc, California.

And then the fourth and final conviction that brings us to court today is a conviction in state court in 1976, with the sentencing occurring in 1978, in which he was found guilty of two counts of assault in the first degree and sentenced to two life terms and then another court of aiding a prisoner to escape, with a 10-year term.

Byron R. White:

Was that sentence enhanced by reason of the '58?

Kenneth O. Eikenberry:

Your Honor, there was no grid or anything at that point which we would say that the court looked in determining what length of time there would be.

Rather, it was simply a matter of the '58 conviction having been in the background, the sentencing court in '78 being aware of it, and the impact that may or may not have had on that maximum term of two life terms we can only guess.